N6368
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) No. 101 OF 2016

JOHN OUMBA 

V

THE STATE  

Kundiawa: Liosi AJ
        2016: 06th July

CRIMINAL LAW – Bail – Applicant charged with Wilful Murder – No exceptional circumstances shown – Offence consists of serious assault and violence to another person – Application granted. 

Cases cited: 
Bernard Juale v The State (1999) N1887)
Dr. Theo Yausause v The State SC 1112
Fred Keating v The State [1988] PNGLR 133
Kysely v The State [1980] PNGLR 36The State v Paul Tarccisius Tohian [1990] PNGLR 173 
Re Diawo [1980] PNGLR 148.
Vela Vari Vele v The State (2004) N 2701

Counsel: 
Mr. J Biki, for the Applicant
Mr. K Umpake, for the Respondent 

Ruling on Bail Application 

06th July, 2016
1.  LIOSI AJ:	This is an application for bail by the applicant pursuant to Section 42(6) of the Constitution and Sections 4 and 6 of the Bail Act.  
2.    The Applicant has been charged with 1 count of Wilful Murder of one Albert John on 16th   October 2015 at Chuave contravening Section 299 (A) of the Criminal Code. The applicant is further charged that he on the 16th day of October 2015 at Chuave attempted to unlawfully kill one Eron Ouma contrary to Section 304(b) of the Criminal Code.
3.    The brief allegations of fact are set out in the affidavit of the applicant himself filed on 31st March 2016 which annexed the Police information and the summary of facts. The allegations are that between Wednesday 15th day of October and Thursday the 16th day of October 2015, at Magiro village, Chuave in the Simbu Province, the defendant was among other men numbering 13 altogether who were having conversation with a Ifana Kai another prime suspect. Ifana is a known alleged sanguma who practised witchcraft. Ifana told the group that he knows who killed the son of John Ouna Rasta at the river side whilst he was alluvial mining for gold. He said they killed Gona John by planting a bomb in his dog which the dog then carried into the tunnel where he was digging for gold and exploded killing him. He then pointed out the deceased Albert John and Eron Ouma as the suspected killers. 
4.    The defendant with the others than started assaulting the deceased with sticks, stones, and bushknives. One of the suspects then got a yar tree stump and hit the deceased on the back of his neck felling him. Using a twine rope they tied both his legs and dragged him to the Guest House area whilst he was already bleeding profusely. At the Guest House they chopped off one of the deceased fingers than used an electric drill to drill his head then dumped his body into a hole. 
5.    After that they went up to the haus man again and started assaulting the second victim Aron Ouma. They brought him down to where Albert’s body was and started questioning him as to who the other suspects are who killed Gena John. They started to burn his body with hot wire and also cut his head with a bushknife. While torturing him they heard a police vehicle approaching so they all ran away. When the police vehicle left the defendants with the others wrapped the body of Albert John with white flour bags and carried him up to the hill. The matter was then reported to the Police who searched the area. The body was then discovered on Sunday 18th October 2015. All the suspects ran away except for the defendant who is the father of Gene John who was arrested.
6.    The Applicant’s application is supported by his two proposed guarantors. They are Cletus Kuble of Kundiawa and Chris Mondo of Department of Primary Industry Kundiawa. Cletus Kuble says he knows the applicant very well. He is a public servant attached to the office of the Governor and a well known person. He is aware of the alleged offence which landed the applicant in police custody. If the court grants bail, he as a public servant and a popular figure will ensure compliance of bail conditions. He understands the responsibilities of a guarantor and is willing to pledge a sum of K1, 500.00. 
7.  Chris Mondo says he is a public servant attached with the Department of Agriculture and Livestock Kundiawa and knows the applicant very well. He lives at Kundiawa and is aware of the offence. If the court grants bail he will ensure compliance of bail conditions. He understands responsibilities of a guarantor. He undertakes to pledge a sum of K1, 500. 00 as surety towards bail and is aware of the seriousness of the undertaking. 
  Submissions

 8.   The applicant in his affidavit in support applies for bail on the following grounds. 
•	Firstly he says he is a well known and respected person in Chuave. He owns and operates a guest house known as Yama Siane guest house located at Mangiro in Chuave. He says police officers, court officers and other senior public servants use the guest house and they know him. He will not abscond bail as he has more to lose. 
•	 Secondly, his family has already paid compensation of K7, 000.00, 5 live pigs and 1 cow to the deceased family.
•	Thirdly, he says the killing occurred at his premises and because he did nothing to stop it he was charged because it is alleged that he encouraged the offence.
•	 His family welfare.
•	He is also a sick patient and is on medication. He has undertaken to pledge the sum of K5, 000.00 as cash bail with the guarantors paying K1, 500.00 each as surety. 
9.	The State submits that the circumstances of this killing is serious and is sorcery related. The killing involved a number of perpetrators as well as torture eventually resulting in death. The accused persons then tried to conceal the body. The State objects to bail   pursuant to section 9(1) (c) of the Bail Act as it involved a serious assault with weapons. If the court is inclined to grant bail then the amount should reflect the gravity of the killing. An amount of K5, 000.00 cash bail plus K1, 500.00 as cash surety of K1, 500.00 each to be paid up front.
10.    It is clear from the facts that considerations under section 9(1) (c) are present. Even than the issue is whether the applicant has shown an exceptional case for the court to exercise its discretion to grant bail. I respond to each of the grounds the applicant relies on.
 
a.   The applicant denied committing the offence. The Courts have time and again held that denial of the offence or innocence is no ground for bail application. It is a matter for the substantive trial to determine.  
b.  He says he is a well known and respected person in Chuave. He owns and  operates a guest house known as Yama Siane in Mangiro in Chuave. Police officers, Court officers and other senior public servants use the guest house and they all know him. Consequently he will not abscond if granted bail. In my view this ground may only be relevant as to whether the applicant will abscond bail or not. 
c.  The ground relating to compensation payment of K7, 000.00, 5 live pigs and 1 cow to the deceased family in my view is irrelevant to the bail application. This is a matter for the substantive hearing and is a matter to be pleaded in mitigation should he be found guilty of the alleged offence. 
d.  The fourth grounds relates to the welfare of his family. The information herein is very sketchy.  What is it about the family’s welfare that the applicant is worried about? In any event in the Supreme Court case of Dr. Theo Yausause v. The State SC 1112 the court endorsed the view of Kariko J on this issue. When refusing bail in the National Court his Honour said; 
“Where an accused person is remanded in custody, it is only natural that the family will suffer in the sense that it will miss the usual parental support (including emotional and financial)”
e. The final ground relates to the applicant’s medical condition. He says he is a sick patient and is on medication. There is no evidence of what he is suffering from and the medication. There is no medical report and his assertions are vague and uncorroborated.    Again I refer to the case of Dr. Theo Yausause where the court again relied on the earlier decision of Kariko J. In this case there was a medical report but it was outdated and the court required an updated medical report. In this case there is no medical report at all. The situation is different. 
11.    Having responded to the grounds, there appears to be no exceptional basis for the applicant to be granted bail. Even then can the applicant still be granted bail? 
12.     Because the applicant is charged with wilful murder he does not enjoy the presumption in favour of bail arising from Section 42(6) of the Constitution that operates in favour of a bail applicant charged with any offence other than wilful murder or treason. However, he does enjoy the benefit of Section 9(1) of the Bail Act, which means that bail can only be refused if the Court is satisfied that one or more of the circumstances in that provision apply. As the State opposes bail in this case, it must establish that one or more of those circumstances apply. If one or more of them do apply, the court is not obliged to refuse bail; the decision whether to grant or refuse bail, and if to grant bail the conditions to be imposed, remain matters for the discretion of the court (Bernard Juale v. The State (1999) N1887). An applicant charged with wilful murder must, in order to convince the court to exercise its discretion in his favour, show that exceptional circumstances make his continued detention unjustified. If none of the circumstances in Section 9(1) apply, bail must be granted. 
13.    The applicant further enjoys the utility of section 4(1) of the Bail Act which reads: 
	“(1)     A person – 
(a)	  charged with wilful murder, murder or an offence punishable by death; or 

(b)	  charged with rape, abduction, piracy, burglary, stealing  with  violence or robbery, kidnapping, assault with  intent to steal, or break and enter a building or dwelling –house, and in which a firearm is involved, irrespective of whether or not the firearm was actually used in the commission of the alleged offence, 

 shall not be granted bail except by the National Court or the  Supreme Court.” 
14.    Under this provision, the applicant may be admitted to bail on the same considerations set   out in 9(1) of the Bail Act. If any one or more of those matters prescribed in s 9(1) is shown to exist, it will not necessarily follow that bail will be refused because the bail authority has the discretion to refuse bail. The Supreme Court alluded to this in, The State v Paul Tarccisius Tohian [1990] PNGLR 173: 
“It is now well established by authorities that bail is a matter of fundamental right under section 42 (6) of the Constitution and must be granted readily, unless the court is satisfied on reasonable grounds of one or more of the matters set out under section 9 of the Bail Act, or unless the “interest of justice otherwise require” as set out under section 42(6) of the Constitution: Kysely v. The State [1980] PNGLR 36, Re Diawo [1980] PNGLR 148. It would appear that the matters set out under section 9 of the Bail Act were intended to give effect to the words “unless the interests of justice otherwise require” in section 42 (6) of the   Constitution. This intention is clear from the words of section 3 of the Bail Act: see Re Keating [1983] PNGLR 133.”
15   Here, the police brief relied on by the State demonstrates that the circumstances in  Section 9(1)(c)(i), (ii) and (iii) apply in that the alleged act constituting the offence in respect of which applicant is in custody consists of a serious assault, a threat of violence and assault using various weapons. The question therefore becomes whether the applicant can show that exceptional circumstances make his continued detention unjustified.  
16.    I have already ruled that the applicant has not shown any exceptional circumstances. I note and agree with the state the circumstances of the killing is very serious. I further note that the state has not established the existence of substantial grounds that one or more of the considerations under Section 9 are present. In the case of Fred Keating v. The State (1988) PNGLR 133 Andrew J said; 
	“before the discretion to refuse bail arises, the court has to be satisfied that there are substantial grounds for believing that one or more of the matter described in section 9 (1)(a) to (g) are present. It is the existence of substantial grounds for the belief, not the belief itself, which is the crucial factor: see R v. Slough Justices; Ex Parte Duncan and Another [1982] 75 Cr. App. 384” 
In Vela Vari Vele v. The State (2004) N 2701 Mogish J said “It is not enough for the state to state it’s belief, it is obliged to call or rely on credible evidence to substantiate its reason.” 
17.    In the current case despite the seriousness of the charge the state has not substantiated existence of any substantial grounds by way of material evidence before the court. That is the State has not filed any evidence as required. 
18.   In the circumstances I exercise my discretion to grant bail. Whilst I exercise that discretion. I am mindful of the serious nature of the alleged offence committed. Any amount of bail granted must and should reflect the seriousness of the alleged offence. The applicant and the public for that matter must appreciate the seriousness of the charge. I say this noting it is only an allegation at this stage. 
19.   The guarantor at the same time must fully understand the nature and consequences of  been a guarantor and the significant roles that a guarantor plays in the whole process of a bail application. That includes the requirement of who should be a guarantor. The proximity or location of a guarantor to the applicant and the requirements of Section 19 of the Bail Act. That is that the court must be informed of the guarantors financial means. The effect of this is far reaching as the court can refuse a guarantor which ultimately can lead to refusal of bail. It could also mean that the court could impose a guarantor’s fee which the guarantor may not afford to pay. 
20.     Having made those comments I grant bail on the following terms and conditions: 
a. Bail is granted in the amount of K10, 000.00. 
b. The guarantors are each to pay upfront the amount of K1, 500.00 each.
c. The applicant shall reside at his Yama Sine Guest House, Chuave. 
d. The applicant shall not leave Simbu without leave of the Court. 
e. He shall not interfere with any state witnesses. 
f. He shall report to Kundiawa National Court every Friday between the hours of 9 am and 3:30 pm until hearing of his case.
g. He shall attend at every criminal call over until his case is heard. 
 h. He shall keep the peace and be of Good Behaviour.  
Orders accordingly, 
___________________________________________________________
Public Prosecutor: 	Lawyers for the State 
Public Solicitor:  Lawyers for the Applicant